Americans are currently bracing themselves for the 2024 presidential election this November, which will now almost certainly be a rematch of the race that was already run four years ago between President Joe Biden and then-President Donald Trump. Some elected officials, however, have begun to think even further ahead. Their thoughts bring little comfort.
Florida Representative Byron Donalds, a staunch Trump ally, is reportedly on the former president’s shortlist for vice president for the upcoming election. If he and Trump were elected this fall and Donalds served a full term, he would be vice president on January 6, 2029, when Congress counts the electoral votes for the 2028 presidential election. Donalds told Axios last week that he might refuse to certify electoral votes from certain states in that role. Keep in mind, in this scenario, he might be his party’s candidate.
“If you have state officials who are violating the election law in their states ... then no, I would not,” he reportedly said. After the last presidential election, Trump infamously pressured Mike Pence, the vice president at the time, to throw out electoral votes from states that elected Biden under the false claim that they were illegally or improperly tabulated. When Pence refused to do so on January 6, 2021, Trump supporters stormed the Capitol to try to stop the votes from being counted.
Donalds’s apparent willingness to do what Pence wouldn’t underscores a major problem for American democracy: The constitutional crisis that began on January 6 four years ago never truly ended. Half of the nation’s political infrastructure—the entire GOP, it seems—remains as willing as Trump was to ignore the Constitution to seize power. And thanks to the Supreme Court, the options to stop them have dwindled.
Consider, for example, last week’s ruling in Trump v. Anderson. Section 3 of the Fourteenth Amendment disqualifies participants in “insurrection or rebellion” from holding future political office. Congress can waive that disqualification by a two-thirds vote in each chamber. A group of voters sued the Colorado secretary of state last year to disqualify Trump from that state’s primary ballot for his role in the January 6 attack on the Capitol. The Colorado Supreme Court ruled in their favor in December.
Last week, the Supreme Court overturned that decision on federalism grounds. “Former President Trump challenges that decision on several grounds,” the court wrote in its unsigned opinion. “Because the Constitution makes Congress, rather than the states, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.”
What the Supreme Court did not decide could be as important as what it did decide. The justices did not address the merits of the Colorado voters’ claim against Trump about the former president’s participation in an insurrection. Nor did they rule in Trump’s favor on grounds that would immunize him from Section 3’s reach. The justices did not address, for example, Trump’s claim that presidents don’t fall under Section 3.
By only ruling that states had no power to disqualify federal candidates, the court punted on whether Trump is actually qualified or disqualified from office under Section 3. Congress could pass legislation to allow states to determine that before November, at least in theory. But the GOP’s control of the House, along with the need to secure a 60-vote majority in the Senate, means it won’t. As a result, Trump’s disqualification won’t become a live legal issue again until and unless he wins more than 270 electoral votes in November.
So if Trump wins a majority of electoral votes on election night, what happens next? It’s doubtful that state legislatures could block electors from formally casting those votes under Trump v. Anderson; the court was pretty emphatic that states have no role in disqualifying federal officers. Nor would there be any apparent avenue for judicial review. The Supreme Court suggested:
An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.
Some legal scholars have warned that the Supreme Court’s ruling could lead to further chaos down the road. If Trump prevails in the November election, for example, Congress will be charged with counting the electoral votes on January 6 once again. This time, however, it might be Democratic lawmakers who argue that votes for a candidate shouldn’t be counted. Unlike some of their Republican counterparts four years earlier, they would also have a strong argument to do so.
“This is an area of high uncertainty for me,” Derek Muller, a University of Notre Dame law professor, told The Washington Post this week. “I think there’s no question the mood from the court is to discourage Congress from refusing to count electoral votes on January 6. But it’s far from clear to me that that is foreclosed from Congress’s power.”
In response to January 6, Congress passed a law in 2022 to reform the Electoral Count Act of 1887, which governs the process for disputed presidential elections. The new law raised the number of lawmakers needed to make an objection, clarified that the vice president cannot unilaterally throw out votes, and established a more straightforward process for certifying and challenging disputed electoral votes in the states and the courts. Those reforms fixed many of the gaps that Trumpworld’s fake-elector plot sought to exploit.
But Congress still theoretically retains the power to exclude invalid votes under the Twelfth Amendment. If Democrats control both chambers of Congress on January 6, 2025, could they potentially vote to exclude Trump’s electoral votes by citing Section 3? The Supreme Court’s ruling in Trump v. Anderson is unclear on that matter. Congress has powers beyond its ability to write legislation where it could theoretically disqualify a federal candidate or officeholder.
Rick Hasen, a UCLA law professor who specializes in election law, also expressed concern about the court’s approach. In a column for Slate, he characterized the decision as an “own goal” by Chief Justice John Roberts, who is typically seen as a capable manager of the court’s decision-making process when he is in a majority. “Leading scholars and lawyers reading the opinion already disagree over what Congress can do and how, keeping the door open to potential chaos,” Hasen noted. “It’s a rare miss by a usually strategic and savvy [Roberts].”
Despite the majority’s apparent efforts to provide a final answer on most disqualification questions, their decision raised just as many questions as the majority attempted to answer. Hasen summarized them as follows:
The majority did not explain how far its holding goes. Is congressional legislation always required to enforce Section 3? There’s not a mention of the elephant in the room, which is what happens on January 6, 2025, when Congress counts electoral votes. Can Democrats opt to not count votes for Trump on the grounds that he’s an insurrectionist? Would that require a prior statute? Or is the power to disqualify when counting Electoral College votes something within Congress’ powers under the Twelfth Amendment, separate from the rules on statutes? If it’s under the Twelfth Amendment, is it not subject to judicial review? Could Congress by statute otherwise disqualify Trump after the election?
The court’s three liberal justices parted ways with the majority on how federal officials could handle disqualification. (Justice Amy Coney Barrett also disagreed with the majority on that point, but did not join the liberals’ opinion.) They suggested that the court had resolved some of these ambiguities. “Ultimately, under the guise of providing a more ‘complete explanation for the judgment,’ the majority resolves many unsettled questions about Section 3,” the three justices wrote. “It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.”
They also suggested that the majority’s ruling might mean that Congress must pass legislation to disqualify federal officials. “The majority further holds that any legislation to enforce this provision must prescribe certain procedures ‘tailor[ed]’ to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law,” the justices continued. “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.”
But a concurring opinion is not binding precedent on the lower courts, nor does it necessarily carry any special weight with the high court going forward. (The liberals’ opinion reads like a dissent, but it is functionally not one because the three justices agreed with the court’s ultimate holding.) Nor is it clear if it matters if it would. As Hasen noted, Congress’s role in counting electoral votes comes from the Twelfth Amendment, not from legislation, and the courts do not have an explicit role in that process.
The Supreme Court’s ruling last week solved what the justices perceived as an immediate problem for themselves. There will be no further disqualification cases before the election, and they may be harder to bring if Trump wins in November. This may have been a relief to a court that perhaps wanted to avoid the perception that it was deciding the outcome of a presidential election.
But their decision also leaves untouched the wound that was opened on January 6. Trump meets the terms of the disqualification clause. He tried to overthrow the American constitutional order to keep himself in power four years ago. The Fourteenth Amendment says that he cannot be president again. The Supreme Court does not dispute this conclusion; it has only dodged it.
By doing so, the justices have not avoided “chaos,” as the majority suggested in its ruling. They have only changed the form that “chaos” will take. Based on Donalds’s comments and those of Trump, who has pitched himself as a dictator on “day one,” the court’s ruling ahead of the 2024 election could have dire consequences for every election after that.
